Can religious groups exclude non-believers?

Universities fight lawsuits over issue

November 18, 2005|By Kathleen Murphy, Religion News Service

The Christian Legal Society at Arizona State University argued that giving gays and non-Christians membership would destroy the group's religious purpose. But the university's non-discrimination policy forbids such exclusion.

So the group sued for an exemption. An out-of-court settlement was reached in September, with Arizona State agreeing to recognize the organization--as long as it limited membership to all students, heterosexual and homosexual, who uphold its religious values on sexuality.

Similar battles are being waged across the country, pitting student groups' constitutional right to religious freedom against public universities' educational interest in teaching inclusiveness.

A moment of legal truth may be approaching as three other state schools--Southern Illinois University, the University of North Carolina at Chapel Hill and the University of California's Hastings College of Law--await decisions in federal courts.

Other campuses that have grappled with the issue include the University of Minnesota, Texas Tech University, Shippensburg (Pa.) University and Washburn University in Topeka, Kan.

In virtually every instance so far, Christian groups have won the right to restrict membership to those who share their beliefs, to the dismay of gays and lesbians.

"We're now living in a country that is being led by people who openly embrace discrimination instead of the love that is taught in the Bible," said Ronni Sanlo, director of the Lesbian Gay Bisexual Transgender Campus Resource Center at UCLA. "Christian student groups who are bringing suits to campuses are being guided by misguided people who are not students and who have been taught to hate, who prosper economically through discrimination."

Steven Aden, chief litigation counsel for the Christian Legal Society's Center for Law and Religious Freedom in Annandale, Va., says his group will continue to provide legal services for student groups.

"We will fight tooth and nail to be recognized," Aden said. "The proposition that religious groups have the right to form around religious beliefs is so well-established in 1st Amendment law."

Many universities fund fraternities, sororities and political clubs that restrict membership, so Christian groups argue that schools cannot refuse to support Christian organizations just because they do the same thing. But universities argue that funding the Christian organizations, knowing the groups discriminate, would make a mockery of non-discrimination laws and policies.

Legal scholars see the cases as a competition between the 1st Amendment's guarantee of free exercise of religion and its requirement that "Congress shall make no law respecting an establishment of religion."

Yale Law School professor Robert Post said the cases will help describe the purpose of public education, such as whether schools should teach ecumenism. The cases could turn on whether teaching non-discrimination is a legitimate educational purpose for government, Post said.

Christian groups are relying on two Supreme Court decisions from 2000 to make their case. In one, the court held 5-4 that the Boy Scouts of America had a 1st Amendment right to exclude homosexuals. Whether that case applies to groups that accept public funds, as Christian groups are arguing, has not been resolved.

Another decision, University of Wisconsin vs. Southworth, said the 1st Amendment lets public universities charge an activity fee as long as the program is viewpoint neutral.

Last fall, without going to court, Ohio State University changed its non-discrimination policy to exempt student groups formed to promote "sincerely held religious beliefs."

Cherish Cronmiller, who served as president of OSU's Outlaws, an alliance of gay and straight law students, said, "I was disheartened. We try to be an inclusive, tolerant society, but at some point we have to say, `This is where your rights begin.'"

At Ohio State, the issue divided the law school faculty. David Goldberger, an Ohio State law professor who favored granting an exemption to the non-discrimination policy, said the university can't interfere with the 1st Amendment's freedom of association once the school opens the doors to the formation of groups.

But Ruth Colker, an OSU law professor who circulated a petition against the school's ruling signed by a majority of law school faculty, said, "I don't see how we promote tolerance by a policy of exclusion."